In the context of racial profiling, Article 8 (right to respect for private and family life) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) are of particular importance. Article 8 guarantees protection against encroachments through coercive measures by the state. In addition, there is a claim to the protection of the good reputation of a person. Therefore, state inference with private life of an individual citizens must be based on an enabling clause and the actual implementation has to be adequately justified. In the context of personal checks without suspicion, this means that they may only be carried out on a legal basis (here usually because of possible illegal entry) and not on the basis of external characteristics such as skin colour (racial profiling).

The problem is that Article 14 can only be applied with respect to the “enjoyment of the rights and freedoms set forth in” the Convention. Only after the Additional Protocol No. 12 has been ratified, Article 14 can be used as the only legal basis. However, Germany has not ratified this Additional Protocol. Therefore, it is not available to German citizens.

The European Court of Human Rights (ECtHR), which analyses complaints on the basis of the European Convention on Human Rights, has rendered judgments against discriminatory state measures. These judgements provide guidance for national courts in assessing similar cases.

For example, in one case involving two Hungarian Roma children who have been misdiagnosed with a disability and thus have been denied access to primary education, the ECtHR has decided that the state is required to prevent direct or indirect discrimination - in this case also institutional discrimination - in the field of education:

„The applicants alleged under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention that their education in a remedial school had amounted to direct and/or indirect discrimination in the enjoyment of their right to education, on the basis of their Roma origin, in that their schooling assessments had been paper-based and culturally biased, their parents could not exercise their participatory rights, they had been placed in schools designed for the mentally disabled whose curriculum had been limited, and they had been stigmatised in consequence”.

The judgement can be found here.

With regard to discrimination - as in cases of racial profiling - the ECtHR found that measures or laws which are not directly aimed at discriminating against a particular group, but which in fact disproportionately affect it, should be considered as discriminatory. In addition, discrimination must not be based on discriminatory laws but can be generated by a de facto discriminatory situation.

The Committee on Equality und Non-Discrimination of the Council of Europe published a report on racism in the police in January 2014, which also deals with 'institutional racism':

“Racism does not spare any part of society and the police is no exception. Racism can be present in the attitudes or behavior of police officers, in their interaction with the population or with other officers. It can also be found in rules and regulations applied by the police, which would in that case qualify as institutional racism. Among these, racial profiling is a special concern”.

The Committee therefore recommends in its report:

 “Council of Europe member States should have the courage to acknowledge and address the existence of racism in the police. They should set up independent complaints mechanisms and ensure that racist crimes by police officers are promptly investigated and adequately sanctioned, with a view to avoiding impunity, maintaining trust in the police and encouraging reporting. Member States should also review existing legislation and practices of the police with a view to identifying and modifying those that might have a racist connotation.”